Defense rests in Mazzaglia murder trial

DOVER — Public defender Joachim Barth asked Judge Steven Houran for a mistrial in the Seth Mazzaglia murder trial Tuesday morning, claiming the prosecution misrepresented the public defenders' obligations to their client.

By Kimberley Haaskhaas@fosters.com

EDITOR'S NOTE: This story may contain graphic descriptions of sex and/or violence that some readers may find offensive.

DOVER - Public defender Joachim Barth rested his case in the defense of Seth Mazzaglia at 12:15 p.m. Tuesday just after a long-term friend of the accused murderer testified that Mazzaglia told him about a woman named Natasha who "died in his arms" during college.

Robert Andrew Mitchell of Hillsborough told Assistant Attorney General Peter Hinckley that Mazzaglia, 31, of Dover, was in love with a woman who passed away while an undergraduate at Rensselaer Polytechnic Institute.

"My understanding was that she was a woman he had loved while at Rensselaer and he said she had died in his arms. I assumed he was being more dramatic," Mitchell said.

Hinckley asked what terms Mazzaglia talked about in regards to the woman.

"I thought that she probably existed. It seemed unlikely to me that she died in his arms," Mitchell said.

Mitchell has been friends with Mazzaglia since an Odyssey of the Mind summer camp they both attended the summer before their seventh-grade school year. Mitchell was called to the witness stand by public defender Melissa Davis, who had him testify about the relationship he has with Mazzaglia.

Mitchell said that he graduated from high school at Berwick Academy with Mazzaglia.

"He is one of my closest friends," Mitchell told Davis at the start of his testimony. "We played role playing games. Dungeons and Dragons is the most common example. We also played computer games like City of Heroes."

City of Heros was a massively multiplayer online role-playing game based on superhero comic books. The pair also enjoyed World of Warcraft, a game based on magic and "limitless adventures."

Mitchell said he met Mazzaglia's girlfriend, Kathryn "Kat" McDonough in the summer of 2012, after she moved in with Mazzaglia at his studio apartment at Sawyer Mill. Mitchell said it was shortly after he met McDonough that he moved to Franklin and he and Mazzaglia did not participate in the weekly gaming ritual they had developed over the course of time.

Mitchell said he was present at Mazzaglia's apartment when McDonough's mother, grandfather and aunt visited the complex to try to get McDonough to speak with them after she agreed to move back home and then backed out at the last minute in 2012.

Davis asked Mitchell if Mazzaglia and McDonough ever had sex in the one room apartment while he was there. He said they did.

"I was somewhat uncomfortable with it, but I try to be an ultimately accepting person," Mitchell said. He said he never looked to see what was going on, but he did hear the couple having sex.

Mitchell said he was aware of the fact that the couple was on fetish dating sites to invite other women into their relationship. He told Davis that at one point McDonough found another female who might be interested, and she brought the laptop to Mazzaglia and said, "This one looks promising, shall we claim her?"

Upon cross-examination, Hinckley asked Mitchell if Mazzaglia had ever shared his spiritual beliefs or persona names with him.

"We almost never talked about spiritual beliefs," Mitchell said.

"So you were principally gaming buddies." Hinckley asked.

"Did you ever hear of Dark Heart? Doomsday? Cyrus?... The nameless one?" Hinckley asked. Mitchell said "No" to each name.

"These were aspects of his life he kept separate?" Hinckley asked.

"It is certainly possible," Mitchell replied.

Hinckley asked Mitchell if he was aware Mazzaglia was contemplating the insanity defense in this case.

"It's possible," Mitchell replied.

"That is one way to get away with it," Hinckley said.

The state has charged Mazzaglia with first- and second-degree murder. They claim Mazzaglia strangled Elizabeth "Lizzi" Marriott with a rope after she refused to kiss McDonough and watch the couple have sex.

McDonough testified on the witness stand that after Mazzaglia choked Marriott to the point where she appeared to have a seizure, he laid her limp body on its back on the floor of his studio apartment and began raping her and muttering insults as he fondled Marriott's breasts.

Mazzaglia's defense team say it was McDonough who killed Marriott by smothering her during consensual BDSM sex where Marriott was wearing an elaborate harness that restricted her movements.

After Barth rested his case, the jurors were let go for the afternoon with the instructions to return to Strafford County Superior Court at 10 a.m. Wednesday.

Barth will present his closing arguments Wednesday, followed by Hinckley.

Judge Steve Houran, based upon case law, denied all of Barth's morning requests, including one for a mistrial. Houran said he will present jury instructions after closing statements.

Attorneys on both sides planned to meet at 2 p.m. to discuss those statements.

DOVER — Public defender Joachim Barth asked Judge Steven Houran for a mistrial in the Seth Mazzaglia murder trial Tuesday morning, claiming the prosecution misrepresented the public defenders' obligations to their client.

Mazzaglia is on trial for the October 2012 murder of University of New Hampshire student Elizabeth “Lizzi” Marriott at his Sawyer Mill apartment.

Hinckley asked Greenwaldt questions about her ethical obligations under the law. Barth claimed Hinckley insinuated that Greenwaldt and attorneys in her Dover office would protect their clients over protecting the truth and due process.

Barth provided Houran and Hinckley with a copy of an arson case where a mistrial was declared based upon prosecutorial misconduct. In that case the prosecution claimed it was the job of defense attorneys to protect their client over protecting the their obligation as an officer of the court.

The prosecutors in that arson case asked the witness if it is the lawyer's job to fabricate or do whatever they have to do "to get the client off.""In sum, that was the state's cross-examination," Barth told Houran.

Hinckley said he simply pointed out that the public defender's primary obligation is to their client.

"And that is the truth," Hinckley said. "Their obligation is to the client. I phrased all of my questions about their ethical duties within the balance of the law."

Hinckley pointed out other circumstances in which Barth has objected to testimony and a bench conference was held. He said no such thing occurred while Greenwaldt was on the stand.

"The issue here concerns his misrepresentation of law services obligations," Barth said. He told Houran that Hinckley has made accusations of inappropriate misconduct that are not reversible.

Houran took the matter under advisement.

Barth also raised an anticipatory matter concerning closing arguments. He said the state intends to show how many times defense counsel visited Mazzaglia, 31, of Dover, while he was in the Strafford County House of Corrections on first- and second-degree murder charges.

Barth said that by bringing up the number of times public defenders visited Mazzaglia in jail, the prosecution is inferring "a specific nature of conduct with Mazzaglia."

Barth said such an inference is a violation of a defendant's right to counsel while incarcerated and his right to be free from monitoring by the government.